Mr. Justice CLIFFORD
delivered the opinion of the court.
Compensation for services rendered by the plaiutiff, as agent for the defendant in conducting a certain commercial adventure at his request and for bis benefit, is claimed by
the plaintiff iu the present suit, which is an action of assumpsit for the value of the services rendered.
Prior services of like kind, iu transactions of a similar character, had beeu rendered by the plaintiff' for the same defendant, to which, though not embraced in this suit, and to the litigation which grew out of the same, it becomes necessary to advert iu order to a clear .understanding of the present controversy.
Those prior transactions had their origin in two written agreements between the parties. By the 'first agreement, dated June 24th, 1843, the plaintiff engaged, among other things, to proceed at once to Valparaiso, and there to remain for the term of five years, and to devote himself, for the whole time, exclusively to the business of the other party, such as the sale and purchase of cargoes, collecting freight-moneys, procuring return freights, eliciting orders for the purchase and shipment of goods, effecting the sale of vessels, and collecting and forwarding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, shall, at the expiration of five years, be entitled to one-tenth of the net profits of his business in that trade, subject to certain deductions for interest, cost, and expenses, as therein specified. Under that agreement the plaintiff'proceeded to Valparaiso, where he continued to reside during the period prescribed, and well and truly performed all things required iu the agreement. Having performed the agreement, the plaintiff returned to Boston, where the defendant resided, and on the 7th of May, 1849, they entered into the second agreement, in which the plaintiff engaged to proceed at once to the west coast of South America, and to devote his whole time in those parts, as also in Mexico and California, exclusively to the management of the'business of the defendant in those countries, such as the sale-and purchase of merchandise, or any other property, collecting freight-moneys, procuring freights and consignments of goods, eliciting orders for the purchase and shipment of property, investing money, drawing and negotiating bills of exchange, and for
warding all sueb information as he could obtain respecting the trade. In consideration, of which the defendant engaged that he, the plaintiff, “shall, on his return, be entitled to oneffourth ot' the net profits of his business in that trade, that he (the plaintiff) shall have conducted to completion,” subject to certain deductions for interest, and all costs and expenses incurred, both at home and abroad, in prosecuting the business, including port charges and the expense of sailing and keeping in repair the vessel's employed, the defendant having the right to purchase, charter, freight, and sell '; the vessels designed for the trade at his option, charging or . crediting in the general account the profit or loss in' every such transaction. What funds the plaintiff' had, less two-thousand dollars, he engaged to leave in the hands of the defendant, which he agreed not to abstract, nor any portion of the profits, “ until he shall see fit to withdraw from the present arrangement, which he is at liberty to do at any time by giving the defendant so much notice that any voyage he may have commenced, previous to the receipt of sneh advice, shall receive the full benefit of all of the plaintiff’s service1 to its final accomplishment, and not otherwise.” Pursuant to .'the agreement the -plaintiff proceeded without dela}' to the place designated, and conducted the described business until the twenty-second of February of the next year, when he gave the required notice to take effect at the close of the year; and that on the first of January of the-succeeding year he should joiu the house of Alsop
&
Go.;' and he asked for an account. On the thirteenth of April of the same year, the defendant acknowledged the receipt of the letter written by the plaintiff, giving the required notice, approving the decision the plaintiff had' made to join that -house, a-n.d promised to comply with his request “ as speedily as possible.”
Briefly described, the general mode of conducting the business under each agreement was by adventures and shipments of goods, procured at Boston by the defendant and consigned to the plaintiff, by whom the merchandise was sold and'the proceeds invested in other merchandise which
was consigned to the defendant, who sold the return cargoes, and he kept the books and vouchers, showing the exact profit or loss on each adventure.
Large profits were earned in the business, and at the expiration of the period limited for the continuance of the agreement, a large sum was due to the plaintiff in the hands of the defendant, where it had been allowed to remain without his rendering any account. Repeated requests for an account having failed to secure one, the present plaintiff, on the first day of May, 1857, instituted a suit in equity in the Circuit Court for the District of Massachusetts, and the cause having proceeded to final hearing, and the court having entered a decretal order in favor of the plaintiff, sent the cause to a master to ascertain what the plaintiff was entitled to recover. lie made a report in which he allowed^ among other matters, the claim embraced in the present suit.
Ten exceptions were filed by the present defendant to that report, but it will not be necessary to refer to any one of them, except the tenth, which is substantially as follows : For that the said master has allowed the complainant one-fourth of the profits made by the respondent in the use and employment of a vessel called the Harriet Erving and her cargo during her third voyage, which was not sought to be recovered by the complainant in his or'ginal or amended bill, nor was the vessel or cargo or the profits resulting therefrom during the said voyage, embraced in the said second agreement, nor in any contract or agreement made by the respondent with the complainant, but were solely and exclusively at the profit and loss of the respondent.
Two of the objections taken to the finding of the master in respect to that voyage, as expressed in that exception, were sustained by the Circuit Court: (1.) That the voyage was not within the written agreement, as it was not commenced when the plaintiff gave the notice of his intention to withdraw from the arrangement nor when the defendant, on the thirteenth of April following, acknowledged the receipt of the notice and expressed his approval of the step taken by the plaintiff. (2.) That the proofs were not sufficient to
warraut the conclusion that the parties ever agreed that this
voyage
should'be settled and'adjusted within the principles of the. written agreement; and if they did so agree, that there^was no proper allegation in the bill to support such a decree.
Governed by those views the Circuit Court sustained the exception to the report allowing the claim, and on appeal to this court the decree of the Circuit Court sustaining the same was affirmed.
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Mr. Justice CLIFFORD
delivered the opinion of the court.
Compensation for services rendered by the plaiutiff, as agent for the defendant in conducting a certain commercial adventure at his request and for bis benefit, is claimed by
the plaintiff iu the present suit, which is an action of assumpsit for the value of the services rendered.
Prior services of like kind, iu transactions of a similar character, had beeu rendered by the plaintiff' for the same defendant, to which, though not embraced in this suit, and to the litigation which grew out of the same, it becomes necessary to advert iu order to a clear .understanding of the present controversy.
Those prior transactions had their origin in two written agreements between the parties. By the 'first agreement, dated June 24th, 1843, the plaintiff engaged, among other things, to proceed at once to Valparaiso, and there to remain for the term of five years, and to devote himself, for the whole time, exclusively to the business of the other party, such as the sale and purchase of cargoes, collecting freight-moneys, procuring return freights, eliciting orders for the purchase and shipment of goods, effecting the sale of vessels, and collecting and forwarding all such information as he could obtain respecting the trade. In consideration of which the defendant engaged that he, the plaintiff, shall, at the expiration of five years, be entitled to one-tenth of the net profits of his business in that trade, subject to certain deductions for interest, cost, and expenses, as therein specified. Under that agreement the plaintiff'proceeded to Valparaiso, where he continued to reside during the period prescribed, and well and truly performed all things required iu the agreement. Having performed the agreement, the plaintiff returned to Boston, where the defendant resided, and on the 7th of May, 1849, they entered into the second agreement, in which the plaintiff engaged to proceed at once to the west coast of South America, and to devote his whole time in those parts, as also in Mexico and California, exclusively to the management of the'business of the defendant in those countries, such as the sale-and purchase of merchandise, or any other property, collecting freight-moneys, procuring freights and consignments of goods, eliciting orders for the purchase and shipment of property, investing money, drawing and negotiating bills of exchange, and for
warding all sueb information as he could obtain respecting the trade. In consideration, of which the defendant engaged that he, the plaintiff, “shall, on his return, be entitled to oneffourth ot' the net profits of his business in that trade, that he (the plaintiff) shall have conducted to completion,” subject to certain deductions for interest, and all costs and expenses incurred, both at home and abroad, in prosecuting the business, including port charges and the expense of sailing and keeping in repair the vessel's employed, the defendant having the right to purchase, charter, freight, and sell '; the vessels designed for the trade at his option, charging or . crediting in the general account the profit or loss in' every such transaction. What funds the plaintiff' had, less two-thousand dollars, he engaged to leave in the hands of the defendant, which he agreed not to abstract, nor any portion of the profits, “ until he shall see fit to withdraw from the present arrangement, which he is at liberty to do at any time by giving the defendant so much notice that any voyage he may have commenced, previous to the receipt of sneh advice, shall receive the full benefit of all of the plaintiff’s service1 to its final accomplishment, and not otherwise.” Pursuant to .'the agreement the -plaintiff proceeded without dela}' to the place designated, and conducted the described business until the twenty-second of February of the next year, when he gave the required notice to take effect at the close of the year; and that on the first of January of the-succeeding year he should joiu the house of Alsop
&
Go.;' and he asked for an account. On the thirteenth of April of the same year, the defendant acknowledged the receipt of the letter written by the plaintiff, giving the required notice, approving the decision the plaintiff had' made to join that -house, a-n.d promised to comply with his request “ as speedily as possible.”
Briefly described, the general mode of conducting the business under each agreement was by adventures and shipments of goods, procured at Boston by the defendant and consigned to the plaintiff, by whom the merchandise was sold and'the proceeds invested in other merchandise which
was consigned to the defendant, who sold the return cargoes, and he kept the books and vouchers, showing the exact profit or loss on each adventure.
Large profits were earned in the business, and at the expiration of the period limited for the continuance of the agreement, a large sum was due to the plaintiff in the hands of the defendant, where it had been allowed to remain without his rendering any account. Repeated requests for an account having failed to secure one, the present plaintiff, on the first day of May, 1857, instituted a suit in equity in the Circuit Court for the District of Massachusetts, and the cause having proceeded to final hearing, and the court having entered a decretal order in favor of the plaintiff, sent the cause to a master to ascertain what the plaintiff was entitled to recover. lie made a report in which he allowed^ among other matters, the claim embraced in the present suit.
Ten exceptions were filed by the present defendant to that report, but it will not be necessary to refer to any one of them, except the tenth, which is substantially as follows : For that the said master has allowed the complainant one-fourth of the profits made by the respondent in the use and employment of a vessel called the Harriet Erving and her cargo during her third voyage, which was not sought to be recovered by the complainant in his or'ginal or amended bill, nor was the vessel or cargo or the profits resulting therefrom during the said voyage, embraced in the said second agreement, nor in any contract or agreement made by the respondent with the complainant, but were solely and exclusively at the profit and loss of the respondent.
Two of the objections taken to the finding of the master in respect to that voyage, as expressed in that exception, were sustained by the Circuit Court: (1.) That the voyage was not within the written agreement, as it was not commenced when the plaintiff gave the notice of his intention to withdraw from the arrangement nor when the defendant, on the thirteenth of April following, acknowledged the receipt of the notice and expressed his approval of the step taken by the plaintiff. (2.) That the proofs were not sufficient to
warraut the conclusion that the parties ever agreed that this
voyage
should'be settled and'adjusted within the principles of the. written agreement; and if they did so agree, that there^was no proper allegation in the bill to support such a decree.
Governed by those views the Circuit Court sustained the exception to the report allowing the claim, and on appeal to this court the decree of the Circuit Court sustaining the same was affirmed.
Payment of the claim being refused, the plaintiff, on the fourteenth of August, 1862, instituted the present suit in the Court of Common Pleas for the city and county of New York, where he resides, to recover compensation for his services rendered in respect to that voyage, and the defendant, being a citizen of the State of Massachusetts, removed the cause into the Circuit Court for the first-named district. Py the record it appears that the declaration contained a count on a special agreement to pay one-fourth of the profits earned by the ship on the voyage not adjusted in the prior suit, but it will not be necessary to remark upon that count, as the court ruled and instructed the jury that the plaintiff' could not recover under that count, nor for any part of the profits of the voyage. Apart from that the declaration also contained four other counts, of which the second and third alleged a promise to pay a reasonable compensation for the services rendered, and the fourth and fifth were the common counts of.
indebitatus assumpsit,
and
quantum, meruit.
Service was made and the defendant appeared aud pleaded the general issue, and gave notice that he would give evidence of a former recovery by the plaintiff against the defendant in the said suit in equity in the Circuit Court, founded upon the written agreement, and that the services of the plaintiff, ifany, as claimed in the suit, were rendered under the same agreement. lie also gave notice that he would give evidence to prove that the alleged causes of action did not accrue within six years next before.the commencement of the action.
Testimony was introduced on both sides, and the jury, under the instructions of the court, returned a verdict in favor of the plaintiff for the sum of twenty-nine thousand four hundred and seven dollars and thirty-seven cents, and the defendant excepted and removed the cause into this court. Exceptions were taken by the defendant both to the rulings-of the court in admitting and rejecting evidence, and to the refusal of the court to instruct the jury as requested by the defendant, and to the instructions which the court gave to the jury at the request of the plaintiff Pursuant to the notice given by the defendant ho offered in evidence the record in the equity suit as a bar to the pending action, but the court rejected the evidence and the defendant excepted. He also offered the same record in evidence as a bar to all claim in the action for services rendered for the defendant before the close of the year in which he gave the notice of his withdrawal from the second written agreement, but the court rejected the evidence as inadmissible even for that purpose, and the defendant excepted to the rnliug. Evidence was offered by the plaintiff of the value of his services, to which the defendant objected, insisting that the services of the plaintiff in respect to that voyage, if any, were rendered under the writteu agreement, but the court ruled that the services shown were outside of that agreement, and admitted the evidence, to which the defendant excepted.
Evidently these three rulings depend upon the same considerations, and they present one of the most important questions involved in the bill of exceptions. Yaluable services were rendered by the plaintiff in relation to that adventure. Conceding that, still it would follow, if, by the true construction of the instrument, he was required to perform the services under that agreement, that the record of the former suit, between the parties is a' bar to the present action. Both parties admit that proposition, but. if the written agreement by its true construction did not require him to render the services in question, then the record of the former suit is no bar, because in that view of the case the
services rendered and for which compensation is sought in the present action were not in issue in the prior litigation, as the .causes of action in the two suits are wholly distinct.
Enough has already been remarked to show that the defendant himself was of the opinion in the former suit that the services were not rendered under the written agreement, and that the Circuit Court came to the same conclusion, which was in all things affirmed by this court. Much discussion of the question, therefore, would seem to be unnecessary, as the better opinion is that the question is conclusively settled by the decree in the last-named case. Suppose, however, the question is an open one and is unaffected by those decisions, still the court is of the opiuion that the view taken by the defendant in his exception to the master’s report in the former suit is correct.
By the terms of the written agreement it is very clear that the plaintiff was not required to render any service in any voyage to be commenced after the recéipt by the defendant of the notice of the plaintiff withdrawing from the arrangement, as more fully appears from the mode prescribed of giving the notice, and its effect, as stipulated in the instrument. Such fuuds as the plaintiff had, Jess $2000, he was to leave in the hands of the defendant, and the stipulation was that he should not abstract those funds, nor any portion of his profits, until he should see fit to withdraw front the arrangement, which he was at liberty to do at any time by giving the defendant so much notice that any voj'age “he may have commenced, previous to the receipt of such advice, shall receive the full benefit of all the plaintiff’s services to' its final accomplishment.” Voyages commenced before the notice of withdrawal was given were within the agreement, Whether the vessels had arrived at their port of destination or not, but the plaintiff was not required to render any service under tha+ agreement in relation to voyages projected subsequently, as he was to have no interest in such adventures, not being entitled to auy part of the profits nor’ compelled to- share in the loss.’ One-fourth of the,profits of - the business “conducted to, completion” belonged to the
plaintiff, and in respect to all such voyages he ivas liable, “to. the full extent of his interest and-means, for all the losses that may be made in the business, as also for all the risks and casualties attendant thereon.-”
Taking these, two provisions of the agreement together, it is quite clear that the former decisions in the equity suit were correct, as they show that the plaintiff was allowed to withdraw at any time, on giving the required notice, subject to this reasonable and necessary lihfitation, that as he was to he compensated by a share in the profits of the adventures the required .notice should be such that he would remain long enough to complete the business in every voyage from which his compensation was to come. Where profits were made in a voyage, conducted to completion, he was entitled to one-fourth of the profits, but if the voyage resulted in a loss, he was liable to the full extent of his interest and means for his proportion of the same, showing very plainly that his agency under the written agreement was limited to voyages commenced before the notice was given, as no one, it is presumed, will contend that he was required to render services without compensation, and to be liable for a share of the loss in an adventure in which he had no interest.
Opposed to thjs view-is the suggestion that the plaintiff’ agreed to devote his whole time to the business, but the court is of the opinion that the word business, as used in that connection, must be limited to the period of the full employment of the plaintiff before the notice of withdrawal was given,-as his undertaking subsequent to that notice was merely to conduct the business, meaning the business of the voyages previously commenced; to completion, or, as expressed in the phrase describing the character of the notice to be given, that he shall give “ so much uotice that any voyage he, the defendant, may have commenced previous to the receipt of such advice, shall receive the full benefit of all the plaintiff’s services to its final accomplishment.”
Viewed in the light of these suggestions, it is plain, wTe think, that the word business, as u.sed in the first clause of
the agreement, was not intended to have any larger or different meaning from the other parts of the instrument which describe, in detail, the nature of the services he was required to perform. Sufficient has been remarked to show that the exceptions under consideration must be overruled.
Instructions were also given by the court to the jury in respect to the right of the plaintiff to recover upon the other counts, to many of which the defendant also excepted. Those deemed material to be noticed in this connection, are in substance and effect as follows: (1.) That the plaintiff could not recover under the first count of the declaration, nor any part of the profits of the voyage. (2.) That he might recover reasonable compensation under the other counts for such services as he rendered, if he satisfied the jury by the evidence in the case that he was employed by the defendant to perform service in respect to that voyage, by an agreement distinct and independent of the said written agreement, and that the jury, if they find for the plaintiff, should allow interest upon the amount at 'the rate of seven per cent, from the commencement of the suit. (8.) That the evidence of the agreement, consisting of correspondence. between the parties, the question whether it amounts to an agreement or not is a question of law, and that the court instructed the jury that there was an' agreement between the parties for the performance by the plaintiff of such services as he rendered in respect to the voyage in question, to be compensated for at such rates as those services reasonably deserved.
Before examining the instructions, some brief reference must be made to the evidence. In the letter giving notice of his intention to withdraw from the arrangement, the plaintiff stated that he would manage the business of the defendant until the close of the same year, and it appears that the defendant subsequently loaded and dispatched the ship, whose third voyage is in question, consigning her to the plaintiff. She left Boston on the twenty-first of August, arrived at Valparaiso on the eighth of December, and sailed thence on the twenty-seventh of the same month for Co
quimbo and other points on the coast to complete her cargo, and thence returned to Boston, her port of ultimate destination.
From the inception of the voyage, the defendant advised the plaintiff by letter of his intentions in respect to her outward and return cargoes, and instructed him fully as to what he, the plaintiff', should do on the coast in relation to the adventure. He consigned the cargo'to the plaintiff, or, in his absence, to Alsop & Co., as appears by the bill of lading, and wh.en the ship sailed he instructed the master to proceed with all possible dispatch diréct to Valparaiso, informing him that the plaintiff, as his agent, or, in his absence, the firm named in the bill of lading, would dispose of the outward cargo, provide for the wants of the ship, and direct his further movements.'
Suffice it to say the plaintiff'concluded the whole business of the voyage in the same manner as he had conducted the business of previous voyages, — that is, he prepared and forwarded to the defendant a memorandum for a cargo suitable to be sent to that'market, purchased and had in readiness, for the ship her return cargo, and dispatched her from the; coast and directed the sale of her outward cargo, and was in constant correspondence with the defendant in relation to the adventure from its inception to its final consummation.
Error is assigned as to the second and third instructions.
1. Argument to show that the second is correct is hardly necessary, as it is quite clear that the plaintiff is entitled to recover a compensation for his services, if he proved that the services were rendered at the request of the defendant under some agreement wholly distinct from the written agreement embraced in the prior litigation.
Indebitatus assumpsit
is founded upon what the law terms an implied promise on the part of the defendant to pay what in good conscience he is bound to pay to the plaintiff, consequently where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation.
2. Next error assigned is that the court erred in charging the jury that the correspondence showed an agreement between the parties distinct from the prior written agreement which wras litigated in the equity suit, but the court is of the .opinion that the charge was correct, as it is ivell-settled law that written instruments are always to be construed by the court, except when they contain technical words, or terms of art, or when the instrument is introduced in evidence collaterally, and where its effect depends not merely on the construction and meaning of the instrument, but .upon extrinsic facts and circumstances, in which case the inference to be drawn from it must be left to the jury.
Where the question was whether there was a contract between two parties to be deduced from correspondence, Parke, Baron, said: “The law I take to be this: that it is the duty of the court to construe all written instruments. If there are peculiar expressions used in the instrument, which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what is the meaning of those expressions, but it is for the court to decide what is the meaning of the contract.” Contracts are frequently made by correspondence between the parties, and in such a state of the evidence it was held, in the case of
Begg
v.
Forbes,
that the question was exclusively for the court; Jervis, C. J., remarking, “ Surely the construction of written documents is for the judge, whether many or few in number.” Exceptional cases arise where the contract rests partly in the correspondence and partly in oral communications, in which it is held that the question whether or not there is a contract is a question for the jury.
Courts of justice, however, are not denied the same light and information the parties enjoyed when the contract was executed, but they may acquaint themselves with the persons and circumstances that are the subjects of
the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the-things described.
Proof of service at the request of the defendant was full and uncontradieted,. and the Circuit Court instructed the jury that the plaintiff , was “ entitled to recover in the case such sum as the reasonable
quantum, meruit
value of his services, upon the evidence, you may regard to be proper;” adding that the instruction “ includes a consideration by you of what his services were, the entire scope of the trade, and his qualifications for those services at the time he rendered the same, in reference” to that voyage, aud the consideration of how much those services were in bulk or in value before the close of the year, and the consideration of-his services after that date, and whether they are to be diminished after by any payment or allowance which ought to be charged against the plaintiff' on account of any compensation he may have received as a member of the firm to which he belonged; and stating, in conclusion, to the effect, that the court left the whole case to the jury as, a question of fact'for their determination.
Most of the other exceptions to the charge of the court are shown to be without merit, by that instruction, which submitted the whole evidence to the jury.
Beyond all question the plaintiff was entitled to interest from the commencement of the suit, and it is not perceived that there is any error in the rule prescribed as to the rate, as it is the rule of the
lex fori,
especially as no rate is fixed in the contract and no place designated for its performance.
Separate examination of the numerous other-exceptions as to the ruling of the court, in admitting and rejecting evidence, will not be attempted, as none of them are of any
general importance. Suffice it to say they have all been examined and the court is of the opinion that they must severally he overruled, and that there is no error in the record.
Judgment affirmed.
Mr. Justice STRONG dissented from this judgment and from the preceding opinion respecting the construction and legal effect of the written agreement between the parties.
Mr. Justice HUNT also dissented.